Citation Nr: 1436111
Decision Date: 08/12/14 Archive Date: 08/20/14
DOCKET NO. 11-14 948A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota
THE ISSUE
Entitlement to service connection for a bilateral foot disorder.
REPRESENTATION
Appellant represented by: Minnesota Department of Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Counsel
INTRODUCTION
The Veteran served on active duty from October 1979 to October 1982.
This matter comes before the Board of Veterans' Appeals (Board) from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In August 2013, and December 2013, the Board remanded the claim for additional development.
In June 2014, the Veteran was afforded a hearing before the undersigned, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002).
The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.
FINDING OF FACT
The Veteran does not have a foot disability that is related to his service.
CONCLUSION OF LAW
A foot disability is not related to service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Service Connection
The Veteran asserts that he has a foot disability due to his service. The Veteran's claim (VA Form 21-526), received in May 2010, shows that he stated that his foot disorder began in January 1980, and that he did not receive any inservice treatment, and that his foot disability was related to boots worn during service, and long marches outdoors in cold weather, which the Board understands.
During his hearing, held in June 2014, he testified that during service in Germany, he had duties in communications that required him to be outside in the cold, and that his feet had been frostbitten about three times. He further testified that he periodically developed foot blisters, but that he had only been treated once or twice during service because they were expected "to suck it up." He stated that he did not "march around a lot," but that he was often out in the field while wearing boots. The Veteran's representative stated that the Veteran declined an examination upon separation from service because he had been in a motor vehicle accident, and he was "afraid of punitive damages."
In June 2014, the Veteran submitted two lay statements, together with a waiver of review by the agency of original jurisdiction. Although there are several VA progress notes which have been added to the claims file after the most recent issuance of a supplemental statement of the case in February 2012, these records are cumulative, and merely show continued treatment for foot disorders which are already demonstrated. Accordingly, a remand for another supplemental statement of the case is not warranted. 38 C.F.R. § 20.1304 (2013); see generally Cornele v. Brown, 6 Vet. App. 59, 62 (1993) (medical evidence which merely documents continued diagnosis and treatment of disease, without addressing other crucial matters, such as medical nexus, does not constitute new and material evidence).
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." See 38 C.F.R. § 3.303(d).
Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Arthritis can be service connected on such a basis; however, as will be explained in more detail below, the record is absent evidence of this condition within a year following the Veteran's discharge from service.
With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id.
The Veteran's service treatment records include an entrance examination report, dated in August 1979, which shows that his feet were clinically evaluated as normal. In an associated "report of medical history" he denied having a history of foot problems. A September 1980 report indicates that the Veteran did not have a profile (light duty), and that he was not taking any medications. A November 1981 report notes that there was no pending action or consultations, no unresolved pathological findings, no problems of a recurrent nature, and that there was no physician recommendation for positive findings. An April 1982 report is signed by the Veteran. It notes that there are no pending profile recommendations, unresolved pathological findings in X-ray reports, no medications being taken, no recurrent problems, no temporary or permanent profile review, and no abnormal findings requiring evaluation and action by a physician.
In July 1982, he was treated for a complaints of blisters on the bottoms of his feet. On examination, he had a blister on the bottom of the ball of his right foot. The blister was noted to be popped and healing. He was told not to run or jump for four days, to wear a soft shoe for 24 hours, and he was issued mole skin and a razor. An October 1982 "disposition form" (DA 2496) indicates that the Veteran was given the option of not taking a physical examination, that his medical records would be reviewed by a physician, and that if the review indicates that an examination should be accomplished, he would be scheduled for one based on the results of the review. The report shows that the Veteran signed the report, and that he indicated that he did not want a separation physical examination. Another part of the form indicates that the Veteran's medical records had been reviewed by a physician or PA (physician's assistant), and that a medical examination for separation was not required. A separation examination report is not of record.
Overall, the service records provide some evidence against this claim, indicating a minor problem in service with no indication of a chronic condition.
As for the post-service medical evidence, which is more important in this case, consists of VA and non-VA reports, dated between 2009 and 2014. This evidence shows that as of June 2010, the Veteran was noted to have pes planus, hammertoes, bunions, and plantar keratoderma (all bilateral), and a mild HAV (hallux valgus) deformity, right foot. The June 2010 report notes that he is very active physically, and that he lifts weights. Other VA reports note the presence of calluses and corns.
A VA examination report, dated in September 2011, shows that the examiner stated that the Veteran's claims file had been reviewed. The Veteran complained of bilateral foot pain, to include severe bilateral foot pain after shoveling snow for five minutes, after walking 150 yards to the train station, and from operating the brake pedal while driving. He denied receiving current treatment, and stated that he used foot inserts and miconazole powder. The Veteran was noted to work in a housekeeping position. He reported that his inserts helped him to stand for longer periods of time when performing his housekeeping duties. The examiner summarized the Veteran's service treatment reports. X-ray reports contain diagnoses of pes planus, and hallux valgus deformity (right foot), and mild degenerative changes of the first metatarsophalangeal joint, mild hallux valgus, and pes planus (left foot). The examiner diagnosed bilateral pes planus, bilateral hallux valgus, and mild DJD (degenerative joint disease) left first metatarsophalangeal joint.
Following review, the examiner concluded that the Veteran's diagnosed conditions were less likely than not (less than 50 percent probability) related to his active duty service. The examiner explained the following: the Veteran's enlistment history and physical examination identified no physical abnormalities of the feet while on active duty. In July 1982, he was treated for a right foot blister that healed uneventfully. The Veteran denied any active medical problems upon separation from service. There was no evidence of ongoing care for a foot condition during the first five years after separation from active duty. The Veteran was treated for foot symptoms in 2010. Given the absence of any diagnosed chronic foot conditions at the time of separation from active duty, and no evidence of any ongoing medical care for a bilateral foot condition during the first five years after separation, the Veteran's currently diagnosed foot conditions are more likely related to aging and an active lifestyle.
The Board finds that this report provides highly probative evidence against this claim.
Treatment reports from a Department of Corrections, dated between 2013 and 2014, show that the Veteran was treated for complaints that his boots irritated his toes and feet, and his calluses. His treatment apparently included shaving of his calluses.
The claims file includes lay statements from the Veteran's sister, and brother-in-law, received in May 2014. The Veteran's sister states that the Veteran complained of foot pain following service, and that he lacked funds for treatment until 2010. The Veteran's brother-in-law states that he has known the Veteran for over 20 years, and that he always walked "kind of funny like his feet were hurting." He recalls the Veteran telling him that his feet had been frostbitten a couple of times in the Army. He states that the Veteran never had "insurance or money."
The Veteran has submitted articles, apparently printed out from the internet, received in about December 2011, which state the following: there are numerous causes of acquired adult flatfoot, including fracture or dislocation, tendon laceration, tarsal coalition, arthritis, neuroarthropathy, neurologic weakness, and iatrogenic causes. The most common cause is posterior tibial tendon dysfunction, which can be caused by, inter alia, trauma. Adults can develop flat feet in their 60s and 70s, and this type of flat foot is usually on one side.
As an initial matter, the Board finds that the Veteran is not a accurate historian. Although he asserts that he sustained frostbite up to three times during service, and that he did not seek treatment because his unit had a "suck it up," work ethic, his service treatment reports show that he received treatment for relatively minor symptoms that included a sore throat, chest pain, getting punched in the left cheek, getting punched in the nose, and a blister on his foot. There is no record of treatment for frostbite, or any other foot symptoms, other than a single instance of a right foot blister, nor was a foot disorder noted in "chronological records of medical care," dated in September 1980, November 1981, and April 1982, it which minor problems were cited, but not the problem before the Board (which does not support the Veteran's factual contentions). He waived his right to an examination upon separation from service, and the records show that a review of his history by medical personnel resulted in the conclusion that an examination was not required.
To the extent that it was argued during his hearing that he refused a separation examination report because he had been in a motor vehicle accident and "was afraid of punitive damages," service treatment reports show that in October 1982, the Veteran was treated for a closed head injury after he ran into a pole, and that he had a high level of alcohol in his system. The alleged relationship between "punitive damages" resulting from this accident and undergoing a separation examination and was not further explained, and is unclear. This assertion is unpersuasive and does nothing to enhance his credibility. The Board further notes that the Veteran is shown to have been incarcerated during part of the appeal period.
Overall, the best evidence in this case does not support the Veteran's factual contentions. See Wilson v. Derwinski, 2 Vet. App. 16, 19-20 (1991); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (holding that in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness).
The Veteran's service treatment records show that a foot disorder was not shown in "chronological records of medical care," dated in September 1980, November 1981, or April 1982. The Veteran received a single treatment for a right foot blister in July 1982. There was no subsequent treatment for foot symptoms during his remaining period of service, a period of about three months. The Veteran elected not to receive an examination upon separation from service, and a review of his medical records by a service physician or PA resulted in the conclusion that a medical examination for separation was not required. With the exception of mild degenerative joint disease of the left first metatarsophalangeal joint, the Veteran is not shown to have been diagnosed with a disorder listed at 38 C.F.R. § 3.309(a), and the U.S. Court of Appeals for the Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
Furthermore, there is no relevant medical evidence dated between separation from service and June 2010, a period of over 27 years. There is no evidence to show that arthritis of a foot or toe was manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309. There is no competent opinion in support of the claim. The only competent opinion of record is the September 2011 VA examiner's opinion, and this opinion weighs against the claim. This opinion is considered highly probative evidence against the claim, as it is based on a review of the Veteran's claims file, and it is accompanied by a sufficient explanation. Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied.
The Board has considered several articles associated with the claims file which discuss flat feet. However, these articles are so general in nature, and so nonspecific to the appellant's case, that the Board affords them little probative weight. For example, one of the articles states that there are no less than seven causes of flat feet. To the extent that they indicate trauma may cause tibial tendon dysfunction, the Veteran is not shown to have sustained foot trauma during service. They therefore do not provide a sufficient basis to find that there is a causal relationship between the Veteran's service and the claimed condition. See e.g. Libertine v. Brown, 9 Vet. App. 521, 523 (1996).
With regard to the appellant's own contentions, and the lay statements, a layperson is generally not capable of opining on matters requiring complex medical knowledge (such as the source of the Veteran's current foot problems and connecting them to service more than 25 years ago). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). The issue on appeal is based on the contention that the Veteran has a bilateral foot disability that is related to his service. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this case, lay persons are considered competent to report readily observable conditions such as blisters, and to report foot pain, however, the Veteran has been found not to be credible, and the Board has afforded the objective medical evidence of record greater probative value.
With regard to arthritis, this is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In addition, nothing in the record demonstrates that the Veteran, or the laypersons who have submitted statements, received any special training or acquired any medical expertise. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). This lay evidence does not constitute competent medical evidence and it lacks probative value. Given the foregoing, the Board finds that the service records, and the medical evidence, outweigh the appellant's contentions and the lay statements, to the effect that the Veteran has a foot disability due to his service.
The Board has considered the applicability of "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis. 38 U.S.C.A. § 5107(b).
II. Duties to Notify and Assist
VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).
Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id.
The appellant has not alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via a letter dated in May 2010, of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements. Nothing more was required.
The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and non-service records relevant to the issue on appeal have been obtained and are associated with the appellant's claims files. The Veteran has been afforded an examination and an etiological opinion has been obtained. In this regard, the Veteran's representative has argued that another examination is warranted. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the September 2011 VA examination report shows that the examiner reviewed the Veteran's claims file and medical history, recorded his current complaints, summarized his medical history, conducted an appropriate examination, and rendered appropriate findings, and diagnoses that are consistent with the remainder of the evidence of record. This examination report is therefore considered to be adequate for adjudication of the claim.
In June 2014, the Veteran was provided an opportunity to set forth his contentions during a videoconference hearing before the undersigned Veterans Law Judge (VLJ). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims recently held that 38 C.F.R. § 3.103(c)(2) requires that a VA employee who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010).
Here, during the June 2014 hearing, the VLJ identified the issue on appeal. Information was solicited regarding the etiology of his disability. The testimony did not reflect that there were any outstanding medical records available that would support his claim. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any other evidence that might be available that had not been submitted. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record.
Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).
ORDER
Service connection for a foot disability is denied.
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JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs